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May 14, 2013

Privilege and democratic accountability

Conflict between privilege and accountability?

ACCORDING to media reports, the Parliamentary Standing Committee on Law, Justice and Parliamentary Affairs (the Committee) has decided to call Mr. H.T. Imam, Adviser to the Honourable Prime Minister, as a witness in its investigation in the matter of forced retirement of two district judges, and their subsequent reinstatement. This obviously relates to the Parliament’s long-standing right to hold the executive branch accountable by exercising its constitutionally mandated privilege to call witnesses and documents. It also raises a new issue of “executive privilege” — the right of the head of government to receive candid opinion from advisers without fear of scrutiny of the Parliament.

Article 76 of our Constitution empowers the Parliament to appoint various Standing Committees. According to Article 76(3), “Parliament may by law confer on committees appointed under this article powers for — (a) enforcing the attendance of witnesses and examining them under oath, affirmation or otherwise; (b) compelling the production of documents.” Article 78 of the Constitution addresses the issue of privileges and immunities on behalf of Parliament and its members. Again, such parliamentary privileges, according to Article 78(5), need to be determined by an Act of Parliament.

Our Parliament hasn’t yet passed legislation under Article 78 to give effects to parliamentary privileges and immunities. Nor has it done so to regulate the functioning of Standing Committees. However, the Rules of Procedure, which was also adopted by the Parliament, gives its Committees the power to take evidence or call for documents, and also send for persons, papers and records.

For example, Rule 202(1) states that: “A witness may be summoned by an order signed by the Secretary and shall produce such documents as are required for the use of a Committee.” Rule 203 provides that: “A Committee shall have power to send for persons, papers and records: Provided that, if any question arises whether the evidence of a person or the production of a document is relevant for the purposes of the Committee, the question shall be referred to the Speaker whose decision shall be final.” Thus, under the Rules of Procedure, apparently it is within the rights and jurisdiction of the Committee to call Mr. Imam as a witness before it.

What is parliamentary privilege, anyway? According to Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 23rd ed., “Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively…and by member of each House individually, without which they could not discharge their functions, and which exceeded those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.” Parliamentary privilege allows the Parliament and its Committees to control its proceedings, including calling witnesses and summoning documents.

Is the executive branch compelled to comply with the Committee’s decision to call Mr. Imam? Not necessarily. The prime minister may invoke executive privilege to prevent him from testifying before the Committee. Executive privilege has been invoked by many American presidents, beginning with George Washington.

According to the Congressional Glossary: “Executive privilege refers to the assertion made by the president or other executive branch officials when they refuse to give Congress, the courts, or private parties information or records which have been requested or subpoenaed, or when they order government witnesses not to testify before Congress.”

The American Constitution does not provide for executive privilege. However, it is argued that such a privilege is implied in the constitutionally mandated separation of powers. In order to do their jobs, presidents argue, they need candid advice from their advisers and aides — and they may not be willing to give such advice if they knew they might be called to testify, under oath, before a Congressional Committee or some other forum.

In 1792, George Washington rebuffed efforts by Congress and the courts to obtain information about a disastrous expedition against Indian tribes along the Ohio River. He lost the battle and handed over all the records. President Eisenhower, by invoking the principle of executive privilege for the first time, successfully kept officials from his administration from testifying during the army’s hearings on Senator Joe McCarthy.

During the Watergate investigation, which was a criminal inquest, President Nixon failed in his attempts to withhold White House audio tapes from special prosecutor Leon Jaworski. Nixon had to hand over the tapes, and, four days later, he resigned. In 1998, President Clinton invoked executive privilege and lost to the courts when a federal judge ruled that Clinton aides could be called to testify in the Monica Lewinsky scandal.

Although executive privilege is not a constitutional principle, American courts have recognised this right, which has been invoked over and over again by presidents. In the 1974 Supreme Court decision United States v. Nixon, the Court acknowledged “the valid need for protection of communication between high government officials and those who advise and assist them in the performance of their duties.”

The Court went on to state that human “experience teaches that those who expect public dissemination of their remarks may well temper candour with concern for appearances and for their own interests to the detriment of the decision making process.”

While the Court recognised the need for confidentiality in discussions between presidents and their advisers, it ruled that such right was not absolute, and could be overturned by the Court. In the Court’s majority opinion, Chief Justice Warren Burger wrote: “Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”

The principle of separation of powers is also a fundamental feature of our Constitution, thus the concept of executive privilege should also apply to our situation. In addition, the Rules of Business also give the executive branch the power to “decline to produce a document on the grounds that its disclosure would be prejudicial to the safety or interest of the State” (Rule 203). It is reasonable to expect that the same privilege should apply to advisers called to testify before a Parliamentary Committee.

The decision of the Parliamentary Standing Committee to call an adviser to the prime minister to testify before it raises the dilemma of secrecy vs democratic accountability. In order to perform their oversight function effectively, the Parliamentary Standing Committees must have the right to call witnesses and ask for records, which is part of their privilege. However, this privilege must not be unlimited and must not come at the cost of the chief executive’s right to get candid advice and opinions from her advisers.

A balance must be struck, which can be done by enacting appropriate laws mandated by Articles 76 and 78 of the Constitution. We hope the Parliament will immediately pass a law. In doing so, the Parliament must not make the privilege unlimited, and limit it to ensuring the accountability of the executive branch.